Citation Nr: 1026824
Decision Date: 07/19/10 Archive Date: 07/28/10
DOCKET NO. 08-39 253 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem,
North Carolina
THE ISSUES
1. Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for ankylosing
spondylitis of the dorsal and lumbar spine.
2. Entitlement to service connection for posttraumatic stress
disorder (PTSD).
ATTORNEY FOR THE BOARD
Christine C. Kung, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1958 to August
1960.
This matter comes on appeal before the Board of Veterans' Appeals
(Board) from October 2007 and January 2009 rating decisions of
the Department of Veterans Affairs (VA) Regional Office in
Winston-Salem, North Carolina (RO) which, respectively, confirmed
and continued a previous denial of service connection for
ankylosing spondylitis of the dorsal and lumbar spine, and denied
service connection for PTSD.
The issue of whether new and material evidence has been received
to reopen a claim of entitlement to service connection for
ankylosing spondylitis of the dorsal and lumbar spine is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO.
FINDING OF FACT
On May 7, 2010, prior to the promulgation of a decision in the
appeal, the Board received notification from the appellant,
through his authorized representative at that time, that a
withdrawal of the appeal for service connection for PTSD is
requested.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal for service connection
for PTSD by the appellant or his authorized representative have
been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002);
38 C.F.R. § 20.204 (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board may dismiss any appeal which fails to allege specific
error of fact or law in the determination being appealed.
38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to
any or all issues involved in the appeal at any time before the
Board promulgates a decision. 38 C.F.R. § 20.204 (2009).
Withdrawal may be made by the appellant or by his or her
authorized representative. 38 C.F.R. § 20.204. In the present
case, the appellant, through his authorized representative, has
withdrawn his appeal for service connection for PTSD and, hence,
there remain no allegations of errors of fact or law for
appellate consideration. Accordingly, the Board does not have
jurisdiction to review the appeal and it is dismissed.
ORDER
The appeal of a claim of entitlement to service connection for
PTSD is dismissed.
REMAND
Pursuant to 38 C.F.R. § 20.700, a hearing on appeal before the
Board will be granted if an appellant expresses a desire for one.
The Veteran indicated on a November 2009 VA Form 9 that he wanted
to have a Board hearing at a local VA office before a Member of
the Board (travel Board hearing). Although the November 2009 VA
Form 9 was submitted subsequent to the issuance of a statement of
the case addressing service connection for PTSD; the Veteran had
attached a statement discussing his claimed back disability. The
Veteran and his representative had also indicated in statements
submitted both prior to and after the submission of the November
2009 VA Form 9, that the Veteran was not pursing an appeal on his
claim for PTSD. It appears, therefore, that the Veteran is
requesting a travel Board hearing to address his appeal to reopen
a claim of service connection for ankylosing spondylitis of the
dorsal and lumbar spine.
The Veteran has not yet been afforded a hearing in conjunction
with his current appeal, nor is there any indication that the
Veteran has withdrawn his hearing request pursuant to 38 C.F.R. §
20.704(b) and (e). Because travel Board hearings are scheduled
by the RO, the Board is remanding the case for that purpose. See
38 C.F.R. § 20.704(a) (2009).
Accordingly, the case is REMANDED for the following action:
1. The RO should schedule the appellant
for a travel Board hearing before a
Veterans Law Judge of the Board sitting at
the RO as soon as it may be feasible. The
RO should send notice of the scheduled
hearing to the appellant, a copy of which
should be associated with the claims file.
2. Thereafter, the case should be
returned to the Board for further
appellate review, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs